51 Cards in this Set
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constitution
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highest "supreme" power; make treaties
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statute
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law passed by states
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ordinance
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statutes passed by cities
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regulations
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created by agencies; create more specific statutes
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private law
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dealing with contracts
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court cases
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common law with precedent
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uniform laws
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laws recommended to be followed by all states but cannot be established nationwide by congress
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"bribery law"
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tax on alcohol until all states agreed upon drinking age
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administrative law
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agency created to help with rules, orders, and decisions
perform all 3 functions of government
ex. FDA, IRS, Homeland Security
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common law
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1. precedent-court decision used as example for future similar cases---no two cases are identical
2. goal: for law to be common in all courts
3. used where statutes do not apply or where situation is too vague
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question of law
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the law itself and what it means, how it applies
-only judges have a say on question of law
-ex. too fast for conditions---45mph in 55mph zone
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question of fact
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what happened?; discussion of facts from certain perspective
-juries decide
-judges decide if theres no jury
-ex. too fast--78mph in 65mph zone
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why might judge not follow precedent?
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1. times have changed
2. substantial difference from precedent case
3. precent was wrong
ex. Brown vs Board of Education
went against precedent bc separate but equal was unconstitutional
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common law vs civil law
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-common law: very few statutes and court cases become precedent
-civil law:statutory codes and court decisions are not precedent
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criminal case
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always associated with government entity, been brought bc of "wrong" done to society
-based on defendant's CONDUCT
-must be proved beyond reasonable doubt!
-not quantifiable--must be more than 50%
---also known as preponderance of evidence
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civil case
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associated with people, businesses, or organizations that are not affiliated with government
-based on CONSEQUENCE to plaintiff
-must prove with preponderance of evidence
-greater than 50%
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innocent yet liable
double jeopardy can't apply to state & federal
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ex. OJ Simpson was innocent yet liable for reparations to family members of deceased
-criminal case: innocent--bc not proved beyond reasonable doubt & plead the 5th
-civil case: liable (guilty)--bc more than 50% & can't plead the 5th
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criminal & civil case
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-wait until verdict of criminal case to bring civil case
-if guilty in criminal case then automatically guilty in civil case
-when criminal case is over--lose right to plead the 5th
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federalism
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sharing of power between D.C. and the states
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enumerated powers
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lists out how powers are to be divided
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separations of power
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government made up of three branches
-checks & balances: branches can limit the powers of other branches
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how to decide if constitutional case?
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1. gov't affiliated group?
2. conduct justify the infringement? if justified then dismissed, if not then a case begins
3. how big infringement? minor-no case, major-becomes case
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commerce clause
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gov can only regulate commerce if it interferes with interstate commerce or if large enough burden/conflicts with federal laws
-ex. gibbons v ogden--if commerce is "substantially affected" then gov has right to regulate interstate commerce
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law that can be made unconstitutional for interstate commerce:
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big burden with high risk
or
benefit is not big enough
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freedom of speech
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only certain things protected:
*political-fully protected but no absolutes
*commercial (advertising)-limited protection; regulated but not prohibited
*obscene-not protected(cursing,pornography)
*offensive-regulated but not enforced(racial slurs, political)
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due process
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right to trial
(in 20 days)
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equal protection clause
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all people of all trials shall be treated similarly
-strict: race distinctions (lots of examination)
-intermediate: age or gender
-rational basis: all other distinctions (less examination)
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law vs equity courts
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-law: very technical, limited remedies
-equity: fairness where law courts would lead to unfair result
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don't ask what type of case, but...
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-what type of charges
-who is involved
-who is hurt
-who can press charges
-what possible lawsuits can occur
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to file a suit, you need:
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1. standing
2. jurisdiction
a. personal or in rem
b. subject matter
3. venue
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standing
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-stake you have in the matter,
-must have justifiable reason to sue,
-cannot sue for someone else,
-injury must be personalized
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jurisdiction
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WHO of the trial
-cant ask jurisdiction w/o knowing plaintiff & defendant
-who can tell you what to do
based on:
-residency
-physical presence (where incident took place)
-minimum contacts
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in rem
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-location of property that is subject to law suit relevant
-usually involves real estate
-typically based on ownership dispute over the property
-takes place of personal jurisdiction over defendant
-location of parties not relevant
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venue
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-location or place where case will be heard
will be in city or county of the state of jurisdiction
-if witnesses, venue may change to benefit them
rules can be modified but must stay in jurisdiction
-civil-usually where defendant lives
-criminal-where crime took place
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venue exceptions
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Colorado teacher sleeps with hs senior--changes venue of small town to denver to avoid publicity
-you get in car accident in wyoming
-you can sue wyoming person in Wyoming jurisdiction
-wyoming can sue you in Colorado jurisdiction
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to file in federal court:
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-must be a violation to federal statutes, trademark/patent, or something to do with constitutional law
-plaintiff can request federal if questions federal law or with diversity of citizenship (two different states) & there is $75,000+ in dispute
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state court systems
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-supreme
-appellate
-trial
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pleadings
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complaint-filed by plaintiff
answer-by defendant
can either:
-deny or admit
-make a counterclaim
-make a 3rd party complaint
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discovery
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evidence/facts discussed before trial to avoid surprise
includes:
-deposition
-interrogatories
-medical records
-business records
-production of documents
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jury
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criminal:
12 people
must be unanimous or mistrial (never happened)
civil: one of parties must request jury or judge waives the right
6-12 people
must be majority
terms of selection: void dire (questioning by attorneys)
-for cause (provide reason to not be sworn in)
-peremptory…
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reasons for appeal in court:
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-procedural defect: error made by judge in trial
-impossible that verdict is correct
-cannot appeal bc of disagreement with outcome
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mediation
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voluntary process to avoid court
-mediator: neutral 3rd party who helps negotiate & form resolution
-often used if long-term relationship
-mediator makes proposal but parties not required to follow
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arbitration
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voluntary appointment or arbitrator to make binding decision
anyone can be arbitrator
-give up right to appear in court
-3rd party makes decision for the parties
-nonbinding--parties can go thru w/lawsuit if don't agree with arbitrator
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writ of certiorari
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writ from higher court asking a lower court for the record of a case
-court will not issue writ unless at least 4 of 9 justices approve
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litigation
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process of resolving a dispute through the court system
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motion to dismiss
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request to dismiss the case for stated reasons
-improper delivery of the complaint and summons
-plaintiffs failure to state a claim for which a court could grant relief
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motion for judgement on the pleadings
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pretrial motion:
-judge will grant motion only when no dispute over facts just questions of law
-may only consider evidence contained in the pleadings
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motion for summary judgement
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pretrail motion:
court may consider evidence outside the pleadings
-sworn statement by parties or witness
-sole question of law not fact
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counterclaim
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claim made by defendant in civil lawsuit against the plaintiff; in effect the defendant is suing the plaintiff
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motion for directed verdict
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judge takes decision out of juries hands and makes direct verdict based on ground that other party not produced sufficient evidence to support his or her claim
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appellate review
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court of appeals doesn't hear evidence but instead reviews record for errors of law
options:
-affirm court decision
-reverse court decision
-remand(send back for further hearings)
-affirm/reverse in part
-modify
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Exam 1 (CH 1-3)